FOR PUBLICATION
ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEES:
GEORGE O. LOPEZ DAVID W. STONE IV
Hinkle, Racster, Lopez & Clamme Stone Law Office
Portland, Indiana Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MATTER OF THE ADOPTION OF M.L.L. )
)
MARY ANN LOWE, )
)
Appellant-Respondent, )
)
vs. ) No. 48A02-0401-CV-2
)
JEFF AND KRISTA WHITE, )
)
Appellees-Petitioners. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Dennis D. Carroll, Special Judge
Cause No. 48C01-0202-AD-1
June 29, 2004
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Mary Ann Lowe appeals the trial court’s grant of Jeff and Krista White’s
Petition for Adoption of M.L.L., Lowe’s biological daughter. Lowe presents the following
issues for our review:
1. Whether the trial court has jurisdiction over the adoption.
2. Whether her consent to the adoption was voluntarily and validly executed.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 11, 2000, Lowe gave birth to M.L.L., out-of-wedlock, in Tennessee.
In December 2001, Lowe filed a petition to establish paternity alleging that Ronald
Stephens is M.L.L.’s father, which was confirmed by a paternity test. Also
that month, Lowe contacted her cousin Jeff White, an Indiana resident, and asked
him whether he would “take care of” M.L.L. for her. But later
that month, Lowe told Jeff that she had changed her mind about that
arrangement.
On February 2, 2002, Scott County, Tennessee, Sheriff’s Deputy Hubert Yancey arrested Lowe
for possession of either methamphetamine or cocaine.
See footnote
After her arrest, Lowe advised
Deputy Yancey that she would be willing to act as a confidential informant
(“CI”) and execute a controlled drug buy with a certain drug dealer.
Accordingly, Deputy Yancey arranged for Lowe to meet with officers from the Governor’s
Drug Task Force. While Lowe was waiting for those officers, she explained
to Deputy Yancey that she was afraid for M.L.L.’s safety as a result
of Lowe’s participation in the drug buys, because the drug dealer was a
dangerous man. Lowe told Deputy Yancey that as a result of that
fear she was sending M.L.L. to live in Indiana.
In an attempt to make certain that Lowe would fulfill her obligations as
a CI, Deputy Yancey explained that if she went to court on her
drug charge, “the worst case scenario for her was the child protective services
could get involved and she could lose her child.” Lowe consistently expressed
her willingness to act as a CI. She ultimately participated in three
controlled drug buys.
On February 4, 2002, Lowe called Jeff’s mother and asked her whether Jeff
and Krista would still be interested in adopting M.L.L. So Jeff called
Lowe, and she told him that she wanted him to come down to
Tennessee to pick up M.L.L. “because there was some trouble.” Jeff and
Krista immediately left for Tennessee and arrived at 6:00 a.m. on February 5.
Lowe met the Whites at their grandmother’s house, and Jeff gave Lowe
a Consent to Adoption and a Consent to Guardianship for her signature.
Jeff and Lowe then drove to the courthouse in Oneida, Tennessee, so that
Lowe could execute the consents and have them notarized. Jeff asked Lowe
to read the consents during the trip, and, upon their arrival, Lowe signed
the consents in the presence of a notary public. The notary asked
Lowe for identification and asked whether she had read and understood the consents
before notarizing them. Lowe wanted to talk to a judge, but the
judge’s secretary told her she should consult with an attorney instead. Lowe
and Jeff made an appointment to meet with an attorney later that day,
but Lowe had a change of plans and did not meet with the
attorney.
At the end of the day, Lowe helped the Whites pack M.L.L.’s belongings,
and she gave them M.L.L.’s birth certificate and social security card. The
Whites then took M.L.L. and returned to Indiana. On February 12, 2002,
the Whites filed a Petition for Adoption and Lowe’s Consent to Adoption with
the Madison Circuit Court in Indiana.
On February 14, 2002, Lowe signed a Revocation of Consent to Guardianship and
Revocation of Consent to Adoption Procedures, which was later filed with the Madison
Circuit Court.
See footnote
On February 20, Lowe sought and obtained a temporary restraining
order from the Juvenile Court for Scott County, Tennessee, which provided in relevant
part: “Jeffrey and Krista White are hereby restrained and prohibited from interfering
with Petitioner’s right to gain access to her minor child, [M.L.L.], and they
are required to immediately surrender possession of said child to [Lowe].” Despite
that order, M.L.L. continued to live with the Whites.
On February 26, following a hearing, a Tennessee court entered an order establishing
Stephens’ paternity of M.L.L. The court noted that “[a]n adoption of this
child may be pending in Indiana.” And the court stated that it
“has not addressed any right [Stephens] may have to visitation or custody.”
On March 4, the Juvenile Court for Scott County, Tennessee, held a hearing
on Lowe’s petition for the return of M.L.L. The Whites were not
present, but their counsel, attorney Huff represented them at the hearing. Huff
argued that Indiana had jurisdiction over this matter pursuant to the adoption petition,
but the Tennessee court disagreed, finding in relevant part:
[A]t the time the child was removed to the State of Indiana, there
was a paternity petition pending in the Juvenile Court for Scott County, Tennessee,
which had been filed in December 2001, prior to the removal of said
child; that Respondents never dealt with the father of said child, and he
never consented to the removal of the child; that Tennessee never gave up
jurisdiction of the child; there was not an effective surrender of the child
under Tennessee law; and the minor child should be immediately returned to Petitioner
in the State of Tennessee.
Despite that order, M.L.L. continued to live with the Whites in Indiana.
On March 27, Lowe filed an Emergency Petition to Dismiss Adoption and Return
Child with the Madison Circuit Court. Following a hearing on that petition,
the court ordered that the Whites retain custody of M.L.L., but also granted
Lowe visitation with her. The trial court heard evidence regarding the Whites’
adoption petition and all pending motions beginning on November 22, 2002, and additional
hearings were held on January 8, 2003, October 31, 2003, and November 5,
2003. On December 2, 2003, the trial court issued its findings and
conclusions granting the Whites’ petition to adopt M.L.L. This appeal ensued.
DISCUSSION AND DECISION
Standard of Review
As a reviewing court, we will not disturb the trial court’s decision in
an adoption proceeding unless the evidence at trial leads to but one conclusion
and the trial court reached the opposite conclusion. Bell v. A.R.H., 654
N.E.2d 29, 32 (Ind. Ct. App. 1995). We will neither reweigh the
evidence, nor assess the credibility of witnesses. Id. We examine the
evidence most favorable to the trial court’s decision. Id.
Issue One: Jurisdiction
Lowe first contends that the trial court does not have jurisdiction over this
matter under the Uniform Child Custody Jurisdiction Act (“UCCJA”).
See footnote
The UCCJA was
adopted in part to avoid competition and conflict among courts of different jurisdictions
in matters of child custody, to promote interstate cooperation in rendering custody decrees,
and to deter abductions and other unilateral removals of children undertaken to obtain
custody awards. Hughes v. Hughes, 665 N.E.2d 929, 931 (Ind. Ct. App.
1996). Under the UCCJA, the trial court must first determine whether it
has jurisdiction and, if it does, whether to exercise that jurisdiction. Pryor
v. Pryor, 709 N.E.2d 374, 376 (Ind. Ct. App. 1999).
In determining whether a trial court has improperly exercised jurisdiction under the UCCJA,
we apply an abuse of discretion standard. Id. An abuse of
discretion will occur when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court, or if the
court has misinterpreted the law. Id.
The UCCJA provides in relevant part:
Jurisdiction. (a) A court of this state which is competent to decide
child custody matters has jurisdiction to make a child custody determination by initial
or modification decree if:
(1) this state (A) is the home state of the child at the
time of commencement of the proceeding, or (B) had been the child’s home
state within six (6) months before commencement of the proceeding and the child
is absent from this state because of his removal or retention by a
person claiming his custody or for other reasons, and a parent or person
acting as parent continues to live in this state;
(2) it is in the best interest of the child that a court
of this state assume jurisdiction because (A) the child and his parents, or
the child and at least one (1) contestant, have a significant connection with
this state, and (B) there is available in this state substantial evidence concerning
the child’s present or future care, protection, training, and personal relationships;
(3) the child is physically present in this state and the child has
been abandoned; or
(4) (A) it appears that no other state would have jurisdiction under prerequisites
substantially in accordance with paragraphs (1), (2), or (3), or another state has
declined to exercise jurisdiction on the ground that this state is the more
appropriate forum to determine the custody of the child, and (B) it is
in the best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs (3) and (4) of subsection (a) physical presence in
this state of the child, or of the child and one (1) of
the contestants, is not alone sufficient to confer jurisdiction on a court of
this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for
jurisdiction to determine his custody.
Ind. Code § 31-17-3-3 (emphasis added).
Here, the trial court found that M.L.L. was living in Indiana and that
Lowe had abandoned M.L.L. at the time the adoption petition was filed.
Thus, the trial court concluded that it had jurisdiction over the adoption petition
under the UCCJA. Lowe contends that the evidence is insufficient to show
that she abandoned her child. We cannot agree.
There is no statutory definition of “abandonment” as it relates to the UCCJA,
but our common law provides that “abandonment exists when there is such conduct
on the part of a parent which evidences a settled purpose to forego
all parental duties and relinquish all parental claims to the child . .
. .” In re the Adoption of Force, 126 Ind.App. 156, 131
N.E.2d 157, 159 (1956). Here, Lowe requested that the Whites take M.L.L.
to live with them in Indiana, signed a consent to guardianship and a
consent to adopt, and helped them pack M.L.L.’s belongings, including M.L.L.’s birth certificate
and social security card. That evidence is sufficient to show that Lowe
intended to forego her parental duties and relinquish her parental rights. Lowe
merely asks that we reweigh the evidence, which we will not do.
The trial court did not err when it found that Lowe had abandoned
M.L.L. for purposes of the UCCJA. Thus, under Indiana Code Section 31-17-3-3(a)(3),
because M.L.L. was living in Indiana at the time that the Whites filed
their adoption petition and Lowe had abandoned her, the trial court had jurisdiction
over this matter.
Still, Lowe contends that the trial court lacks jurisdiction under Indiana Code Section
31-17-3-6(a), which provides in relevant part as follows:
A court of this state shall not exercise its jurisdiction under this chapter
if at the time of filing the petition a proceeding concerning the custody
of the child was pending in a court of another state exercising jurisdiction
substantially in conformity with this chapter, unless the proceeding is stayed by the
court of the other state because this state is a more appropriate forum
or for other reasons.
(Emphasis added). Lowe maintains that because her paternity petition was pending in
Tennessee at the time that the Whites filed their adoption petition in Indiana,
the trial court was precluded from exercising jurisdiction. But the paternity action
did not concern Stephens’ custody of M.L.L., just his paternity. The Tennessee
court’s order establishing paternity expressly states that it had not determined visitation or
custody. As such, Indiana Code Section 31-17-3-6(a) does not prohibit the trial
court’s exercise of jurisdiction in this matter.
Finally, Lowe maintains that Tennessee retains jurisdiction over this matter under the Interstate
Compact on the Placement of Children (“the Compact”), which “relate[s] to the same
general subject matter[]” as the UCCJA. See In re Matter of C.B.,
616 N.E.2d 763, 768 (Ind. Ct. App. 1993). But we need not
address the jurisdictional rules under the Compact, because it does not apply to
“[t]he sending or bringing of a child into a receiving state by the
child’s parent . . . and leaving the child with . . .
[a] non-agency guardian in the receiving state.” Ind. Code § 12-17-8-1, Article
VIII. Because Lowe sent M.L.L. to Indiana to live with the Whites,
whom Lowe designated as guardians,
See footnote
the Compact does not apply here.
Issue Two: Voluntariness and Validity of Consent
Lowe next contends that her consent was neither voluntarily nor validly executed.
First, Lowe maintains that her consent was not voluntary because it was the
result of “Officer Yancey’s threats and pressure.” Next, Lowe asserts that her
consent is not valid because it was not executed in compliance with Tennessee
law. We address each contention in turn.
For the execution of a parent’s consent to an adoption to be valid,
the consent must be voluntary. Bell, 654 N.E.2d at 32. A
parent’s consent to an adoption is voluntary if it is an act of
the parent’s own volition, free from duress, fraud, or any other consent-vitiating factor,
and if it is made with knowledge of the essential facts. Id.
The issue of an invalid consent may be raised by a petition
to withdraw consent, and the burden of proof in such a matter falls
on the petitioner. Id. We have previously observed that “‘emotion, tensions,
and pressure are . . . insufficient to void a consent unless they
rise to the level of overcoming one’s volition.’” Id. at 32-33 (quoting
In the Matter of Adoption of Hewitt, 396 N.E.2d 938, 942 (Ind. Ct.
App. 1979)).
Here, Lowe’s sole contention on the voluntariness issue is that she would not
have signed the consent to adoption if Officer Yancey had not threatened her
with jail time and with having her child taken from her. Lowe
does not contend that anyone else pressured her into giving her consent.
In support of her contention, she directs us to the following excerpts of
Officer Yancey’s testimony:
Q: What approach did you take with her in regards to [her] criminal charge
[on the drug possession]?
A: That is one of the main focuses as to why I’m here today.
I believe it’s partially my fault that I have placed too much
pressure on Ms. Lowe. . . . I told her that, you
know, you can work with us when she was adamant about working with
us, but somewhat scared of working with or against the individual . .
. [whom] I would consider to be dangerous. And I had told
her that, you know, you can help us or you know, if we
go to court, the judge will be aware that there [are] drug charges
and that you have a child. At that point, we could intervene
with child services. I said, “And once [child services] start[s its] investigation,
it’s out of our hands.”
* * *
Q: Okay. Would it be safe to say, Officer, that in trying to
get people to work with you, and when I say work with you
I mean trying to roll on somebody or trying to work with the
Task Force or trying to get a bigger somebody else that . .
. and again, I don’t want to use the word lie, but at
least officers give them what is the worst case scenario.
A: Yes, sir.
Q: And is that what you were doing with her?
A: Yes.
* * *
Q: And, in fact, the worst case scenario for her was the child protective
services could get involved and she could lose her child.
A: Yes.
Q: And did you also say something about maybe losing her car or her
home?
A: Yes, sir.
* * *
Q: And upon giving her this worst case scenario, did she, in fact, agree
to work for you?
A: Yes. She was really wanting to work with us the whole time,
but I guess I did come across as too aggressive.
(Emphasis added).
Officer Yancey also testified that he discouraged her from “giv[ing] the child up.”
And the undisputed evidence shows that Lowe had first expressed her desire
that the Whites take M.L.L. to live with them in December 2001, before
she had been arrested or volunteered to serve as a CI. We
cannot say that the only conclusion to be gleaned from the evidence is
that Officer Yancey’s pressure on Lowe to serve as a CI overcame her
volition with regard to the adoption. The trial court did not err
when it found that Lowe’s consent was voluntary. Again, Lowe asks us
to reweigh the evidence, which we will not do.
Lowe next contends that her consent is invalid because it does not comply
with the requirements of the applicable Tennessee statute. Specifically, Tennessee Code Section
36-1-111 provides in relevant part that “[a]ll surrenders [of children] must be made
in chambers before a judge of the chancery, circuit or juvenile court .
. . .” Here, the evidence shows that Lowe’s consent was notarized,
but not signed in chambers before a judge.
But the validity of Lowe’s consent is not governed by Tennessee law.
We have established that the Madison Circuit Court has jurisdiction over the adoption
proceedings. Indeed, consistent with Lowe’s wishes at the time she signed the
consent, the Whites filed the consent with an Indiana court. As such,
Indiana law applies with regard to whether Lowe’s consent was validly executed.
See, e.g., In re Adoption of C.L.W., 467 So.2d 1106, 1111 (Fl. Ct.
App. 1985) (citing Restatement (Second) of Conflict of Laws § 289 (1971) for
rule that a court “generally applies its own state law in determining whether
to grant an adoption[;]” and holding consent valid where mother executed consent in
Pennsylvania with knowledge that adoption petition would be filed in Florida).
Indiana Code Section 31-19-9-2 provides in relevant part that a consent to adoption
“may be executed at any time after the birth of the child either
in the presence of: (1) the court; [or] (2) a notary public
. . . .” Because the evidence shows that Lowe executed her
consent in the presence of a notary public, her consent is valid.
The trial court did not err when it granted the Whites’ adoption petition.
Affirmed.
RILEY, J., concurs.
KIRSCH, C.J., concurs with separate opinion.
IN THE
COURT OF APPEALS OF INDIANA
MATTER OF THE ADOPTION OF M.L.L. )
)
MARY ANN LOWE, )
)
Appellant-Respondent, )
)
vs. ) No. 48A02-0401-CV-2
)
JEFF and KRISTA WHITE, )
)
Appellees-Petitioners. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Dennis D. Carroll, Special Judge
Cause No. 48C01-0202-AD-1
KIRSCH, Chief Judge, concurring.
I fully concur. While I have concerns about the consent here at
issue, the trial court resolved those concerns in favor of the adoptive parents,
and we must defer to that court as the finder of fact.
I write separately only to note the anomaly in Indiana law that provides
extensive protections for parents whose parental rights are being involuntarily terminated, but that
provides almost no protections for parents who are voluntarily terminating their rights through
adoption. On the one hand, we provide counsel, notice and hearing, and
the full
panoply of rights to individuals who have abused or neglected their children; on
the other, we provide no protection for the parent who believes she is
acting in the best interests of her child in giving the child up
for adoption. A homeowner who buys home improvements through a conditional sales
contract has the right to disclosures and the right to rescind the contract
within a specified period of time. Shouldn’t we provide as much protection
to a parent who is giving up her child for adoption as we
do to a person buying vinyl siding?
Footnote:
Officer Yancey could not recall which drug Lowe possessed, and the
matter is not clarified in the record.
Footnote: The copy of this document contained in Lowe’s Appendix is not
file stamped, but, in its findings, the trial court states that she filed
it on March 27, 2002.
Footnote: In its conclusions, the trial court notes that “the (
Model) Uniform
Child Custody Jurisdiction Act was amended in 1997 to remove adoption proceedings from
those custody matters covered by the Act.” (Emphasis added). But nothing
in Indiana’s UCCJA, which was amended in 1997, indicates that it does not
cover adoption proceedings. Regardless, the trial court concluded that it had jurisdiction
“[e]ven if the UCCJA governs this litigation[.]” And Lowe does not assert
that the UCCJA does not apply here.
Footnote:
There are several references throughout the briefs and record on appeal
to a Consent to Guardianship Lowe signed, which designated the Whites as M.L.L.’s
guardians. Neither party has included a copy of that consent in their
appendices. But Lowe testified that she signed and notarized a consent to
guardianship in addition to the consent to adoption, and she moved the trial
court to revoke both consents.